United States District Court, W.D. Arkansas, El Dorado Division
FOSTER CABLE SERVICES, INC. d/b/a U-PAS PLAINTIFF
JAMES ERIC DEVILLE and T&D SOLUTIONS DEFENDANTS
O. Hickey Chief United States District Judge.
the Court is Defendants James Eric Deville and Volt
Power's Motion for Judgment on the Pleadings. (ECF No.
15). Plaintiff Foster Cable Services, Inc. filed a
response. (ECF No. 17). The Court finds the matter
ripe for consideration.
is the former employer of Defendant Deville. On February 12,
2017, Plaintiff entered into a confidentiality agreement (the
“Agreement”) with Defendant Deville. The
Agreement states that any information exchanged between
Plaintiff and Defendant Deville is proprietary and has been
designated as a trade secret and/or confidential. The
Agreement gives examples of such covered information as
including, “but is not limited to: [Plaintiff's]
concepts, drawings, designs, and other related proprietary
information.” (ECF No. 3, p. 5). Under the Agreement,
Defendant Deville agreed to keep any covered information
confidential and to not disclose it to any other party. (ECF
No. 3, p. 5). The Agreement states that Defendant
Deville's confidentiality obligations survive the
termination of the Agreement and shall have no time limit,
except as otherwise provided for in the Agreement. The
Agreement does not, however, set out any time or geographical
employing Defendant Deville, Plaintiff underwent negotiations
with Claiborne Electric to provide services under a pole and
line maintenance agreement. On March 1, 2017, Defendant
Deville left his employment with Plaintiff and began
employment with Defendant Volt Power. Shortly thereafter,
Claiborne Electric removed Plaintiff as an engineering vendor
and discontinued negotiations with Plaintiff. Plaintiff
alleges that Defendant Volt Power subsequently obtained a
maintenance agreement with Claiborne Electric because of
Defendant Deville's “disclosure of the potential
client, pricing, and other proprietary information as
precluded by the [Agreement.]” (ECF No. 3, p. 2).
15, 2018, Plaintiff initiated this lawsuit against Defendants
in the Circuit Court of Union County, Arkansas. Plaintiff
asserts claims of breach of contract, tortious interference
with a contract, and conversion, all stemming from Defendant
Deville's alleged disclosure of information protected by
the Agreement to Defendant Volt Power. On July 26, 2018,
Defendants removed the case to this Court.
November 29, 2018, Defendants filed the instant motion for
judgment on the pleadings, arguing that the Agreement is
unenforceable as a matter of law and that Plaintiffs'
claims all fail and should be dismissed. Plaintiff opposes
may move for judgment on the pleadings after the pleadings
have closed. Fed.R.Civ.P. 12(c). In deciding a Rule 12(c)
motion, courts apply the same legal standard used for a
motion to dismiss under Rule 12(b)(6). Ashley Cnty., Ark.
v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). A
pleading must state “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). To meet this standard and to survive a
Rule 12(b)(6) motion, a complaint need only state factual
allegations sufficient to raise a right to relief above the
speculative level that is plausible on its face. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
deciding a Rule 12(c) motion are required to accept as true
the complaint's well-pled allegations and must resolve
all inferences in the plaintiff's favor. Wishnatsky
v. Rovner, 433 F.3d 608, 610 (8th Cir. 2006). However,
this tenet does not apply to legal conclusions,
“formulaic recitation of the elements of a cause of
action, ” or naked assertions which are so
indeterminate as to require further factual enhancement.
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594
(8th Cir. 2009). “Judgment on the pleadings is
appropriate only when there is no dispute as to any material
facts and the moving party is entitled to judgment as a
matter of law.” Wishnatsky, 433 F.3d at 610.
considering a motion for judgment on the pleadings, a court
must generally ignore all materials outside the pleadings.
Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999). However, courts may consider
“some materials that are part of the public record or
do not contradict the complaint . . . as well as materials
that are necessarily embraced by the pleadings.”
Id. (internal quotation marks omitted).
argue that the Agreement is an unreasonable and unlawful
restraint of trade and, as such, is unenforceable. Thus,
Defendants argue that Plaintiff's claims all fail, as
they are premised on the existence of a valid underlying
contract, of which there is none. Plaintiff argues in
response that the instant motion should be denied as
premature because the pleadings have not closed, the parties
have not filed their Joint Rule 26(f) Report, and the parties
have not conducted any discovery. Plaintiff does not,
however, respond to the substance of Defendants'
arguments for dismissal.
preliminary matter, the Court will address Plaintiff's
arguments that the instant motion should be denied as
premature. Then, if necessary, the Court will take up
Defendants' arguments for dismissal.
Whether the Motion is Premature
presents various arguments that the instant motion is
premature. First, it contends that the Court should deny the
instant motion because the pleadings were not closed at the
time Defendants filed the instant motion.
may file a motion for judgment on the pleadings
“[a]fter the pleadings are closed- but early enough not
to delay trial.” Fed.R.Civ.P. 12(c). “The
pleadings are ‘closed' after the complaint and
answer are filed, along with any reply to additional claims
asserted in the answer.” Hesford v. Jefferson
Capital Sys., No. 18-CV-100-CJW, 2019 WL 124823, at *1
(N.D. Iowa Jan. 7, 2019); see also Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1367 (3d ed. 2018) (“[P]leadings
are closed upon the filing of a complaint and an answer
(absent a court-ordered reply), unless a counterclaim,
cross-claim, or third-party claim is ...